Free Complaint - District Court of Delaware - Delaware

Case 1:08-cv-00144-SLR

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE

ST. PAUL MERCURY INSURANCE COMPANY, 385 Washington Street Saint Paul, Minnesota 55102, Plaintiff,

v. GREEN PARK FINANCIAL, LP, 7501 Wisconsin Avenue, Suite 1200 Bethesda, MD 20814-6531 and WOODLARK PROPERTIES III, LP, WOODLARK ENTERPRISES, III, INC., 55 Webster Avenue, Suite 103 New Rochelle, NY 10601

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. ___________________

COMPLAINT Plaintiff St. Paul Mercury Insurance Company, by its undersigned attorneys, brings this lawsuit against Green Park Financial, LP, Woodlark Properties III, LP, and Woodlark Enterprises, III, Inc., and states as follows:

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PARTIES 1. Plaintiff St. Paul Mercury Insurance Company ("St. Paul") is a Minnesota

corporation with its principal place of business in St. Paul, Minnesota. 2. Defendant Green Park Financial, LP ("Green Park") is a D.C. limited partnership

with its principal place of business in Bethesda, Maryland. Green Park regularly does business in Delaware. 3. Defendant Woodlark Properties III, LP is a Delaware limited partnership with its

principal place of business in New York. 4. Defendant Woodlark Enterprises III, Inc. (collectively with Woodlark Properties

III, LP "Woodlark") is a Delaware corporation with it principal place of business in New York. JURISDICTION AND VENUE 5. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332(a)

because this action is between citizens of different states, and because the amount in controversy exceeds $75,000, exclusive of interest and costs. 6. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(a). THE POLICIES 7. St. Paul issued to Walker & Dunlop, Inc. a Commercial General Liability

Protection Coverage Form ("the Primary Policy") and an Umbrella Excess Liability policy ("the Umbrella Policy") (collectively, "the Policies"), each numbered FS06803591, effective June 1, 2006, to June 1, 2007, on which Green Park is listed an additional named insured. 8. The Primary Policy incorporates an endorsement entitled "Financial Professional

Services Exclusion Endorsement" which provides:

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Financial professional services. We won't cover injury or damage or medical expenses that result from the performance of or failure to perform any financial professional service. Financial professional service means any financial activity or service, including any of the following activities or services: · · · · · · · · · · · 9. Advisory or fiduciary services. Lending, leasing, or mortgage operations. Debiting, crediting, or accounting services. Maintaining financial accounts or records. Offering, selling, financing, or administering any insurance product. Collecting, refunding, or failing to refund premiums, interest, fees, or other charges for any insurance product. Acting as an assignee for the benefit of creditors. Credit checking or reporting. Tax planning, withholding, or advisory operations. Escrow, electronic funds transfer, or trust operations. The issuance or sale of bank or certified checks, letters of credit, money orders, or travelers checks.

The Primary Policy contains other terms, conditions, and exclusions affecting the

coverage afforded by the policy. 10. The Umbrella Policy provides coverage above the limits of liability under the

Primary Policy, but also subject to the Financial Professional Services Exclusion Endorsement and other terms, conditions, and exclusions affecting the coverage afforded by the policy. THE UNDERLYING ACTIONS 11. Civil Action Nos. 07-C-105, 07-C-138, 07-C-229, 07-C-486, 07-C-495, 07-C-

597, 07-C-501, and 07-C-496 ("the Underlying Actions") were instituted against Woodlark and Alex Vence, Jr. ("Vence") in the Circuit Court of Cabell County, West Virginia. 12. The Underlying Actions seek to recover damages because of bodily injuries that

occurred as a result of a fire on January 13, 2007, at the Emmons Jr. and Emmons Sr. apartment

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building owned by Woodlark and managed by Vence in Huntington, West Virginia ("Emmons apartment fire"). 13. Woodlark and Vence ("Third-Party Plaintiffs") filed a third-party complaint

("Third Party Complaint") against Green Park, seeking indemnity and/or contribution for any liability Third-Party Plaintiffs may be found to have in the Underlying Actions. 14. The Third Party Complaint alleges that Green Park participated in financing the

purchase of the Emmons Jr. and Emmons Sr. apartment buildings by Woodlark, and in doing so was negligent in its recommendation of building inspectors and retention of appraisers. The Third Party Complaint alleges that Green Park was negligent with respect to its retention of building inspectors and appraisers. ST.. PAUL'S DEFENSE OF THE UNDERLYING ACTIONS 15. On April 18, 2007, Green Park first notified St. Paul of a potential claim against it

in connection with the Emmons apartment fire. 16. On or about May 1, 2007, St. Paul agreed to investigate the matter under a full

reservation of rights, and retained counsel to represent Green Park in connection with claims arising out of the Emmons apartment fire. 17. By letter dated January 2, 2008, St. Paul agreed to defend Green Park in the

Underlying Actions pursuant to a reservation of rights. 18. St. Paul will defend Green Park in the Underlying Actions until the entry of a

judgment declaring that it owes no such defense to Green Park. COUNT I ­ Declaratory Relief 19. St. Paul incorporates by reference all foregoing allegations of this Complaint as if

fully set forth herein.

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20.

Third-Party Plaintiffs seek to recover from Green Park solely damages for injury

that is excluded by the Financial Professional Services Exclusion. 21. Accordingly, St. Paul has no obligation to defend or indemnify Green Park with

respect to the Underlying Actions. 22. Green Park contends that St. Paul is obligated to defend and indemnify it with

respect the Underlying Actions. 23. An actual and justiciable controversy exists between Green Park and St. Paul with

respect to St. Paul's defense and indemnity obligations. WHEREFORE, St. Paul respectfully requests that the Court enter judgment declaring that: (a) St. Paul has no obligation to defend Green Park with respect to the Underlying Actions; (b) St. Paul has no obligation to indemnify Green Park with respect to the Underlying Actions; and (c) St. Paul is entitled to such other and further relief as justice may require. FOX ROTHSCHILD LLP /s/ Neal J. Levitsky, Esquire Neal J. Levitsky, Esquire (No. 2092) Seth A. Niederman, Esquire (No. 4588) 919 N. Market Street, Suite 1300 Wilmington, DE 19801 (302) 622-4200 Attorneys for Plaintiff St. Paul Mercury Insurance Company

OF COUNSEL: Lee H. Ogburn, Esquire Kramon & Graham, P.A. One South Street, Suite 2600 Baltimore, MD 21202-3201 (410) 752-6030 Dated: March 11, 2008

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JS 44 (Rev. 11/04)

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APPENDIX H

CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a)
(b)

PLAINTIFFS

DEFENDANTS

ST. PAUL MERCURY INSURANCE State of Minnesota COMPANY
County of Residence of First Listed Plaintiff

WOODLARK PROPERTIES III, LP, WOODLARK ENTERPRISES, III, INC. State of GREEN PARK FINANCIAL, LP Delaware
(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED
Attorneys (If Known)

(EXCEPT IN U.S. PLAINTIFF CASES)

(c)

Attorney's (Firm Name, Address, and Telephone Number)

SEE ATTACHED
II. BASIS OF JURISDICTION
1 U.S. Government Plaintiff 3 (Place an "X" in One Box Only) Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box for Plaintiff
(For Diversity Cases Only) PTF DEF 1 1 Citizen of the State and One Box for Defendant) PTF DEF Incorporated or Principal Place of 4 4 Business In This State Incorporated and Principal Place of Business in Another State Foreign Nation 5 5

2

U.S. Government Defendant

4

Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

2

2

Citizen or Subject of a Foreign Country

3

3

6

6

IV. NATURE OF SUIT (Place an "X" in One Box Only) CONTRACT TORTS PERSONAL INJURY PERSONAL INJURY 110 Insurance
120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excl. Veterans) 153 Recovery of Overpayment of Veteran's Benefits 160 Stockholder's Suits 190 Other Contract 195 Contract Product Liability 196 Franchise 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers' Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury

FORFEITURE/PENALTY
610 Agriculture 620 Other Food & Drug 625 Drug Related Seizure of Property 21 USC 881 630 Liquor Laws 640 R.R. & Truck 650 Airlines Reg. 660 Occupational Safety/Health 690 Other

BANKRUPTCY
422 Appeal 28 USC 158 423 Withdraw 28 USC 157

OTHER STATUTES
400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 810 Selective Service 850 Securities/Commodities/ Exchange 875 Customer Challenge 12 USC 3410 890 Other Statutory Actions 891 Agricultural Acts 892 Economic Stabilization Act 893 Environmental Matters 894 Energy Allocation Act 895 Freedom of Information Act 900 Appeal of Fee Determination Under Equal Access to Justice 950 Constitutionality of State Stautues

362 Personal Injury ­ Med. Malpractice 365 Personal Injury ­ Product Liability 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 370 Other Fraud 371 Truth in Leading 380 Other Personal Property Damage 385 Property Damage Product Liability

PROPERTY RIGHTS
820 Copyrights 830 Patent 840 Trademark

LABOR
710 Fair Labor Standards Act 720 Labor/Mgmt. Relations 730 Labor/Mgmt. Reporting & Disclosure Act 740 Railway Labor Act 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act

SOCIAL SECURITY
861 HIA (1395 ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))

REAL PROPERTY
210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Tort to Land 245 Tort Product Liability 290 All Other Real Property

CIVIL RIGHTS
441 Voting 442 Employment 443 Housing/ Accommodations 444 Welfare 445 Amer. w/ Disabilities ­ Employment 446 Amer. w/ Disabilities ­ Other 440 Other Civil Rights

PRISONER PETITIONS
510 Motions to Vacate Sentence Habeas Corpus: 530 General 535 Death Penalty 540 Mandamus & Other 550 Civil Rights 555 Prison Condition

FEDERAL TAX SUITS
870 Taxes (U.S. Plaintiff Or Defendant) 871 IRS ­ Third Party 26 USC 7609

V. ORIGIN
1 Original Proceeding

(Place an "X" in One Box Only)
2 Removed from State Court 3 Remanded from Apellate Court 4 Reinstated or Reopened 5 Transferred from another district (specify) 6 Multidistrict Litigation 7

Appeal to District Judge from Magistrate Judgment

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): VI. CAUSE OF ACTION

28 U.S.C. 1332(a)
Brief Description of Cause

DECLARATORY RELIEF
DEMAND $ CHECK YES only if demanded in complaint: JURY DEMAND: Yes No

Conversion for payment of check lacking necessary endorsement
VII. REQUESTED IN COMPLAINT VIII. RELATED CASE(S) IF ANY
DATE

CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23 (See instructions): JUDGE

DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY RECEIPT

#

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

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Counsel for the Plaintiff St. Paul Mercury Insurance Company: Neal J. Levitsky, Esquire Seth A. Niederman, Esquire FOX ROTHSCHILD LLP Citizens Bank Center 919 N. Market Street, Suite 1300 Wilmington, DE 19801 Tel: (302) 622-4238 Fax: (302) 656-8920 and Lee H. Ogburn, Esquire KRAMON & GRAHAM, P.A. One South Street Suite 2600 Baltimore, MD 21202-3201 Tel: (410) 752-6030

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